– Est. –

Four Requirements for Testamentary Capacity

QUESTION:  Does Grandpa have the mental capacity to sign his last will and testament, leaving you his very large estate and disinheriting your ungrateful, meddling, younger brother? 

ANSWER:  Depends on who you ask. 

When Grandpa has peacefully passed, without the ability to confirm his written intentions, you will argue he was as quick as a fox and sharp as a tack, until his very last breath.  Infuriated Brother will argue Grandpa was about two sandwhiches shy of a picnic.

The truth is somewhere in between, often leading to estate litigation. 

 There are generally four requirements for testamentary capacity: 

  1. The person must be able to understand the act in which he or she is engaged (the execution of the will);
  2. The person must know the nature and extent of his or her property (mind you, it need not be the specific dollar amounts or account numbers);
  3. The person must know, without prompting, the claims, if any, of those who are, should be, or might be the natural objects of the person’s bounty (family members); and
  4. The person must be cognizant of the scope and reach of the provisions of the document (not the full legalities of each clause – that’s why you hire attorneys to prepare them in the first place).